Published 4:00 am, Thursday, September 10, 1998

1998-09-10 04:00:00 PDT FRESNO -- Arguing that the prison terms imposed on two Fresno men convicted of armed robbery are much too long, a federal appeals court has taken the unusual step of requesting that Congress revise its mandatory minimum sentencing law.

"We feel a just system of punishment demands that some level of discretion be vested in sentencing judges to consider mitigating circumstances," Wiggins wrote. "If the (proportional) link between culpability and the punishment imposed is severed, then the foundations upon which the criminal justice system are based are rendered morally suspect."

Harris and Steward were students, football players and fraternity brothers at Fresno State University when a series of violent hotel and restaurant robberies occurred in the surrounding area.

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After a trial in which evidence was taken from other college students who had participated in the crimes, Harris was found guilty of five counts of robbery and five additional counts of using a firearm. Steward was found guilty of three counts of robbery and three of using a firearm.

After their convictions, U.S. District Judge Oliver W. Wanger expressed frustration at his lack of discretion under the federal sentencing minimums. He said that, left to his own devices, he would have imposed a 36-year sentence on Harris and a 30-year sentence on Steward.

He noted that neither man had a criminal record, and both had shown the potential for rehabilitation and a successful return to society.

Nevertheless, under the minimum sentencing law, Harris received 95 years in prison and Steward was given 50 years.

In their appeal, the two men asked that their sentences be reduced, saying the penalties constituted cruel and unusual punishment prohibited by the U.S. Constitution.

In yesterday's opinion, the Court of Appeals reluctantly disagreed, saying, "We find that we are unable to alter what are essentially life sentences."

Although the three judges are bound by legal precedent to uphold the lengthy sentences, they urged the Congress to reconsider the mandatory minimums it has enacted, and also invited the president to review cases in which such long sentences are imposed as possible candidates for executive clemency orders.

"In such cases, the public interest will be well served by the release of the defendant," Wiggins wrote.

Assistant U.S. Attorney William Shipley, the prosecutor in the case, said his office respects the concerns expressed by the appellate court, but he also said, "As the court recognizes, the issue (of mandatory minimum sentences) is one for Congress to address."

Shipley said he believes the sentences given Harris and Steward, although long, are just.

"It was apparent from the evidence during the trial that this was an escalating series of increasingly violent acts, culminating in the last robbery in which an employee was pistol whipped and beaten unconscious," he said. "The sentences reflect the seriousness with which handgun offenses must be treated."

Katherine Hart, Harris' attorney, acknowledged that the crime her client had been convicted of was serious, but she called the sentence he received "draconian."

"To me, this was an unbelievable sentence," she said. "For the Court of Appeals to implore the Legislature to change the sentencing laws shows the judges are acting as advocates for justice, not simply judges who are bound to follow legal precedent."